The Open Court Principle and Hybrid Adjudication Models

I have written previously about the open court principle and tribunals. The principle is a presumption in favour of public access to judicial and quasi-judicial proceedings, either through direct access or via media reporting.

The application of the principle is where the challenges arise. What exactly is a “quasi-judicial” tribunal or process? The Federal Court of Appeal addressed this in 2023 (Canadian Broadcasting Corporation v. Canada (Parole Board), 2023 FCA 166) and, more recently, in a decision involving the complaints process for air travel (Air Passenger Rights v. The Attorney General of Canada, 2026 ONSC 3983) Justice Charles T. Hackland of the Ontario Superior Court also addressed this in the context of the federal air travel complaint process.

The Federal Court of Appeal decision in the Parole Board decision was dealing with a request from the CBC for access to the audio recordings of the parole hearing for Paul Bernardo. The court stated (at para. 48):

… the judicial/quasi-judicial distinction has outlived its usefulness in its application to the open court principle. The difficulty with relying on the characterization of a tribunal as quasi-judicial is that it focuses on the Board’s processes and formal characteristics rather than its function. The public interest in court proceedings does not arise from a court’s procedural characteristics but from the fact that it decides questions of rights and duties as between citizens and as between citizens and the state.

The court then asked, if this distinction has outlived its usefulness, what should replace it as an indicator of when the open court principle should apply? The court answered this question (at para. 53):

…The characteristic that gives rise to the application of the open court principle to an administrative tribunal is the presence of an adversarial process, as opposed to the formalities by which that adversarial process is conducted. In short, the open court principle applies to adjudicative tribunals.

The CBC argued for a broader application of the open court principle to include the public interest in a hearing. The court noted that the open court principle had always been limited to public bodies that resemble courts, thereby justifying the same degree of public oversight. It then left the door slightly ajar for a broader application: “It may be that, at some point, a broader foundation for the “openness” will be articulated, but the facts of this case do not justify that change” (para. 55).

What about hybrid processes that are a blend of non-adversarial and adversarial processes?

That was the issue in the Air Passenger Rights case. Air Passenger Rights is a consumer advocacy organization that challenged the confidentiality of the process for air travel complaints. Before discussing the analysis conducted by the court, it is helpful to set out the structure of the complaint process.

In 2023, the Canadian Transportation Act was amended to include new sections that diverted most air passenger claims for compensation from airlines from an existing process administered by the Canadian Transportation Agency (CTA), a quasi-judicial tribunal. The new process created decision-makers called Complaint Resolutions Officers (CROs) who are staff members of the CTA.

The sections of the Act state:

• CRO decisions are not decisions of the CTA
• CROs have the powers, duties and functions of a CRO, not the CTA
• Proceedings before a CRO are not proceedings before the CTA

The CRO complaint process is a written process. The information relied on by the CRO is provided by the passenger and the air carrier in a typical written submissions process: the passenger provides information supporting their complaint, the carrier responds, and the passenger can reply.

This initial exchange of information is used by the CRO for mediation (if both parties agree to mediation) and, if mediation fails, for the final decision. There is no opportunity for either party to test the reliability or authenticity of the information provided. The CRO also has no power to obtain further evidence (in other words, no power to issue summons or examine witnesses).

The Act has a confidentiality provision for the complaint process stating that “all matters related to the process of dealing with a complaint shall be kept confidential” unless both parties agree to release the information. Air Passengers Rights did not challenge the confidentiality provision as it related to mediation (generally protected by negotiation privilege).

The government argued that the open court principle only applied to adjudicative tribunals and that the new complaint process was a non-adversarial process. The court accepted that the primary issue was whether the complaint process was “properly characterized as an adjudicative tribunal”.

The judge found the Federal Court of Appeal’s analysis in the Parole Board decision to be the appropriate analysis. He determined it was his task to determine whether the CRO process “involves presiding over an ‘adversarial proceeding’ to decide questions of rights and duties as between citizens and the state.”

The judge identified the “clearly adjudicative steps” engaged in by the CRO in the complaint process :

• Statutory interpretation
• Making findings of fact
• Determining jurisdiction
• Rendering written decisions
• Administering procedural issues prescribed in CTA guidelines
• Determining entitlement to compensation

In addition, the court noted that CRO’s orders can be enforced as orders of the either the Federal Court or a Superior Court.

The judge concluded that even though the complaint process was designed as a less adversarial and more settlement-oriented process, it continued to fall within the requirements of an open court principle. In other words, the process continued to be an adversarial process designed to adjudicate disputes.

The government argued that any breach of the open court principle was justified under section 1 of the Charter.

This is where dispute resolution design meets the real world of disputes. The government argued that the complaint process was designed to reduce backlogs through the mediation of disputes, and therefore the confidentiality requirements were “an integral part of this model”. In its factum, the government explained:

The entire purpose of this model is to make the process as accessible and streamlined as possible in order to enhance air passengers’ access to their entitlements under a carrier’s tariff. As part of this, air passenger complainants and air carrier Respondents need only provide the information on which they intend to rely once, at the beginning of the complaint process. This information is then used to inform the CRO’s decision on eligibility, mediation (if it occurs), and the CRO’s final decision (if necessary). A bifurcated process, where parties provide one set of information for mediation, but then must make submissions about redactions to information for the decision making stage, would create the exact type of process that Parliament chose to abandon with the 2023 amendments to the CTA. Given the interconnected nature of the mediation and final decision processes, the confidentiality measures are rationally connected to the entire resolution dispute model, including the CRO decision stage.

The judge did not accept this explanation, noting that there was no evidence that the CRO process was primarily mediation-based and what evidence there was demonstrated the opposite. The court concluded that the default step in the process was adjudication, not mediation and that most complaints were adjudicated, not mediated. The judge also concluded that there was no persuasive evidence that the broad confidentiality requirement was necessary to achieve efficiency in the adjudication process.

The Guideline on the Canadian Transportation Agency’s Complaint Resolution Office air travel complaints process has now been amended:

(1) If a case is resolved at the mediation phase, information and documents provided will be confidential and not placed on the public record.

(2) If a complaint proceeds to decision, all information and documents filed with the Complaint Resolution Office will form part of the public record and will be publicly available, unless a request for confidentiality has been made to, and accepted by, the CTA.

…

While there is little room for disagreement with the judge’s ruling that the confidentiality provision was overbroad and should have been limited solely to the mediation stage of the process, there are some concerns about how the complaint process is structured. This is because the same information that is used for a mediation (which remains confidential) is automatically used also for the adjudication phase of the process. Typically, in dispute resolution processes there is a clear demarcation between mediation and adjudication. Theoretically, a party might provide information for a mediation that it might not want to admit in an open adversarial process. Apologies are the classic example.

There is no information available to suggest that airlines were providing information at the mediation stage that would be prejudicial if made publicly available. I am inclined to believe that this was not the case. The process, as now amended, would ensure that information that might facilitate settlement but is otherwise prejudicial will not be provided by either party.

Lessons for tribunals

Mediation and other confidential alternatives to adjudication can be useful tools for resolving disputes efficiently and expeditiously, but the design of these processes need to be clearly separate from any subsequent adjudication process.

It is no longer sufficient for a tribunal to claim that it is “quasi-judicial” when faced with a request by a party for a confidentiality order – it must conduct a functional analysis to reach the conclusion that it is an adversarial body that engages in questions of rights and duties as between citizens and the state. In most cases, this will not be difficult to show. However, it is no longer sufficient to simply state that a tribunal is “quasi-judicial”.